FOIA Project Annotation: Judge Christopher Cooper has ruled that the DEA has not yet shown that it conducted an adequate search for Privacy Impact Assessments required under the E-Government Act because it has failed to explain why it did not expand its search to locate four PIAs that were unaccounted for after EPIC had found evidence of such PIAs in final determination letters from the Justice Department's Office of Privacy and Civil Liberties. EPIC sent a request to the DEA for all PIAs for agency information collection systems that were not available on its website and all initial privacy assessments conducted by the DEA since 2007. OPCL assists Justice components like the DEA to assess the need for PIAs. If OPCL determines a PIA is required, the agency must submit the assessment to OPCL for final approval and post it publicly as long as the system continues in use. The agency searched its Chief Information Officer Support Unit, which acts as a liaison between OPCL and DEA's Senior Component Office for Privacy. SCOP is responsible for approving PIAs before CIOSU submits them to OPCL for final authorization. CIOSU conducted the search for records responsive to EPIC's request. It found only one non-public PIA, which was released to EPIC. The agency told EPIC that initial privacy assessments were essentially working drafts and that the final approval determination letters from OPCL represented the final product. EPIC agreed to accept the 13 OPCL determination letters, which were reviewed and released by OPCL. The OPCL determination letters revealed that OPCL had requested four PIAs from the DEA that were not available online and had not been uncovered in the DEA's initial search. As a result, the DEA re-ran its initial search and still came up with nothing. EPIC made three challenges to the adequacy of the agency's search. Cooper rejected EPIC's claim that DEA had improperly narrowed its search to CIOSU. Cooper accepted the agency's explanation, noting that "the DEA, not its FOIA requestors, is charged with determining the most effective way to search its records." He also dismissed EPIC's claim that inserting the word "final" into the search had improperly limited the search, pointing out that "the CIOSU conducted specific searches based on program names provided by EPIC without adding 'final' as a search term. These searches yielded no additional results." But he agreed with EPIC that once the four unaccounted for PIAs came to light as a result of the OPCL determination letters the agency was required to pursue such a lead. He observed that "if the SCOP had reviewed and approved a final PIA without returning it to the CIOSU, a final version of the PIA might remain with the SCOP. The CIOSU did not explain why searching the SCOP, once EPIC presented evidence of potential [additional] PIAs, was not likely to uncover responsive records. The OPCL letters provide a 'lead' that the CIOSU failed to reasonably follow."
Issues: Adequacy - Search

FOIA Project Annotation: Judge Christopher Cooper has ruled that EPIC is entitled to attorney's fees for its FOIA litigation against the DEA, but has substantially reduced its fee request after finding that EPIC had only prevailed on one issue, that an updated version of the USAO matrix providing lower hourly rates should be used to calculate fees, and that EPIC's request for fees for litigating its fee motion should be reduced accordingly. EPIC had asked DEA for copies of all its Privacy Impact Statements for new databases containing personally-identifying information as required by the E-Government Act. After the agency failed to respond within three months, EPIC filed suit. In July 2015, Cooper ordered the agency to conduct a search. DEA found only one PIA for a system that was no longer in use. However, it also agreed to disclose 13 determination letters prepared by the Justice Department's Office of Privacy and Civil Liberties, four of which recommended DEA prepare a PIA for an information system. Based on this knowledge, EPIC asked Cooper to order DEA to conduct another search. Cooper told the agency that it could either conduct another search or provide a supplemental affidavit satisfactorily explaining why it could not find the four PIAs referred to in the determination letters. The DEA chose to provide a supplemental affidavit and Cooper granted the agency summary judgment. The parties also failed to reach an agreement on attorney's fees and EPIC filed a motion for an award of $33,468. Cooper found that his order requiring the agency to conduct its original search meant EPIC had substantially prevailed on that issue, but that EPIC fell short on its renewed motion to require a further search. Here, Cooper pointed out that "the summary judgment order neither required the DEA to continue searching for records nor provided EPIC the relief it sought, i.e., the production of additional responsive records. The order there did not make EPIC a substantially prevailing party." Cooper found EPIC's request had served the public interest by attempting to determine whether the agency was abiding by its legal obligations to post relevant PIAs. He rejected the DEA's claim that EPIC was commercial because it relied on donations. He observed that EPIC's "chief function remains the public dissemination of information regarding government surveillance." While a handful of recent attorney's fees cases involving FOIA litigation by public interest groups have sided with the plaintiffs' claim that the LSI-Laffey matrix should be used instead of the USAO matrix in determining hourly rates, here, Cooper was persuaded by the government's evidence indicating that the USAO matrix had been updated more recently and was thus a more reliable indicator. Cooper explained that "after examining the case law and the supporting evidence offered by both parties, the Court is persuaded that the updated USAO matrix, which covers billing rates from 2015 to 2017, is the more suitable choice here." Cooper agreed with the government that since EPIC had only prevailed on his July 2015 order, any hours claimed after October 2015 should not be considered for compensation. The DEA challenged a number of entries, but Cooper refused to engage in a nitpicking analysis of claims. However, he agreed with the agency that EPIC had not shown why three attorneys were required to attend certain meetings or make certain decisions, reducing its fee claims accordingly. Because he concluded that EPIC had prevailed only on its first issue, he reduced EPIC's claim for fees for litigating the attorney's fees award by 67 percent. He noted that his rough calculations yielded an award of $20,391, but ordered the parties to calculate a final fee agreement.
Issues: Litigation - Attorney's fees - Prevailing party, Litigation - Attorney's fees - Entitlement - Calculation of award

SUMMONS (3) Issued Electronically as to UNITED STATES DRUG ENFORCEMENT ADMINISTRATION, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent) (md, ) (Entered: 05/04/2015)

2015-05-11

4

RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/11/2015. Answer due for ALL FEDERAL DEFENDANTS by 6/10/2015. (Attachments: # 1 Affidavit Drug Enforcement Administration, # 2 Affidavit US Attorney for the District of Columbia, # 3 Affidavit Attorney General of the United States, # 4 Exhibit Receipt for Certified Mail - Drug Enforcement Administration, # 5 Exhibit Receipt for Certified Mail - US Attorney for the District of Columbia, # 6 Exhibit Receipt for Certified Mail - Attorney General of the United States)(Horwitz, Julia) (Entered: 05/11/2015)

RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. UNITED STATES DRUG ENFORCEMENT ADMINISTRATION served on 5/7/2015, RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 5/11/15. (td, ); (See docket entry no. 4 to view documents) (Entered: 05/11/2015)

Consent MOTION for Extension of Time to Respond to Plaintiff's Complaint by UNITED STATES DRUG ENFORCEMENT ADMINISTRATION (Attachments: # 1 Text of Proposed Order)(Wyer, Kathryn) (Entered: 06/09/2015)

2015-06-10

MINUTE ORDER granting 10 Motion for Extension of Time; it is further ORDERED that Defendant shall file its response to Plaintiff's Complaint on or before June 24, 2015. Signed by Judge Christopher R. Cooper on 6/10/2015. (lccrc2, ) (Entered: 06/10/2015)

2015-06-24

11

ANSWER to Complaint by UNITED STATES DRUG ENFORCEMENT ADMINISTRATION.(Wyer, Kathryn) (Entered: 06/24/2015)

2015-06-29

MINUTE ORDER: Before the Court in this FOIA case are a complaint and an answer. It is hereby ORDERED that the parties shall promptly confer and file a joint proposed schedule for briefing or disclosure by July 15, 2015. Signed by Judge Christopher R. Cooper on 6/29/2015. (lccrc2, ) (Entered: 06/29/2015)

MINUTE ORDER:In light of the parties Joint Status Report filed on 7/15/2015, it is hereby ORDERED that the court ADOPTS the parties proposed schedule as follows: Defendant shall produce to Plaintiff any non-exempt records responsive to Plaintiffs FOIA request, by U.S. mail, on or before August 27, 2015. The parties shall then confer and submit a joint status report on or before October 1, 2015, indicating whether they anticipate the need for further proceedings in this case and, if appropriate, proposing a briefing schedule at that time. Signed by Judge Christopher R. Cooper on 7/20/2015. (tcr) (Entered: 07/20/2015)

MINUTE ORDER: In light of the parties' 15 Joint Status Report, the parties shall confer and submit a joint status report on or before October 22, 2015, indicating whether they anticipate the need for further proceedings in this case and, if appropriate, proposing a briefing schedule at that time. Signed by Judge Christopher R. Cooper on 10/1/2015. (lccrc2) (Entered: 10/01/2015)

ORDER: The parties shall abide by the following briefing schedule in this case: Defendant shall file its Motion for Summary Judgment on or before December 22, 2015. Plaintiff shall file its consolidated Opposition and Cross-Motion for Summary Judgment on or before January 22, 2016. Defendant shall file its consolidated Opposition and Reply on or before February 5, 2016. Plaintiff shall file its Reply on or before February 19, 2016. Signed by Judge Christopher R. Cooper on 10/23/2015. (lccrc2) (Entered: 10/23/2015)

MOTION for Extension of Time to File Response/Reply as to 18 Cross MOTION for Summary Judgment , 17 MOTION for Summary Judgment by UNITED STATES DRUG ENFORCEMENT ADMINISTRATION (Attachments: # 1 Text of Proposed Order)(Wyer, Kathryn) (Entered: 02/03/2016)

2016-02-03

MINUTE ORDER granting 20 MOTION for Extension of Time to File Response/Reply as to 18 Cross-MOTION for Summary Judgment. The Government shall have until March 9, 2016 to file its consolidated Opposition and Reply. It is further ORDERED that Plaintiff's Reply in support of its motion shall be due on March 23, 2016. Signed by Judge Christopher R. Cooper on 2/3/16. (lccrc2) (Entered: 02/03/2016)

ORDER granting in part and denying in part 17 Defendant's Motion for Summary Judgment, and denying in part and reserving judgment in part on 18 Plaintiff's Cross-Motion for Summary Judgment. Please refer to full order for further details. Signed by Judge Christopher R. Cooper on 9/13/2016. (lccrc2) (Entered: 09/13/2016)

2016-10-05

26

Consent MOTION for Extension of Time to File Supplement to Record by UNITED STATES DRUG ENFORCEMENT ADMINISTRATION (Attachments: # 1 Text of Proposed Order)(Wyer, Kathryn) (Entered: 10/05/2016)

2016-10-07

MINUTE ORDER granting 26 Consent Motion for Extension of Time to Supplement the Record. It is hereby ORDERED that Defendant shall supplement the record and file its renewed Motion for Summary Judgment by October 27, 2016, and Plaintiff shall file its consolidated opposition and renewed Cross-Motion for Summary Judgment by November 10, 2016. Signed by Judge Christopher R. Cooper on 10/7/2016. (lccrc2) (Entered: 10/07/2016)

MOTION to Vacate Order on Motion for Extension of Time to File, Supplement to the Record by ELECTRONIC PRIVACY INFORMATION CENTER (Attachments: # 1 Text of Proposed Order)(Scott, Jeramie) (Entered: 11/09/2016)

2016-11-10

29

ORDER granting 27 Defendant's Second Motion for Summary Judgment and granting 28 Plaintiff's Motion to Vacate the Briefing Schedule. It is further ORDERED that parties shall submit a joint status report by December 9, 2016. Signed by Judge Christopher R. Cooper on 11/10/2016. (lccrc2) (Entered: 11/10/2016)

ENTERED IN ERROR.....ORDER granting 28 Motion to Vacate 29 Order on Motion for Summary Judgment. Refer to Order for details. Signed by Judge Christopher R. Cooper on 11/10/2016. (zlsj) Modified on 11/14/2016 (znmw). (Entered: 11/10/2016)

2016-11-14

NOTICE OF CORRECTED DOCKET ENTRY: re Order on Motion to Vacate was entered in error and will not be refiled. (znmw) (Entered: 11/14/2016)

MINUTE ORDER: In light of 30 parties' Joint Status Report and Proposed Schedule, it is hereby ORDERED that the briefing schedule be established as follows: Plaintiff shall file its Motion for Attorney's Fees by December 16, 2016; Defendant shall file its Opposition by January 13, 2017; and Plaintiff shall file its Reply by January 27, 2017. Signed by Judge Christopher R. Cooper on 12/9/2016. (lccrc2) (Entered: 12/09/2016)

2016-12-12

Set/Reset Deadlines: Motion for Attorney's Fees due by 12/16/2016. Responses due by 1/13/2017. Replies due by 1/27/2017. (zlsj) (Entered: 12/12/2016)

Consent MOTION for Extension of Time to File Response/Reply as to 31 MOTION for Attorney Fees by UNITED STATES DRUG ENFORCEMENT ADMINISTRATION (Attachments: # 1 Text of Proposed Order)(Wyer, Kathryn) (Entered: 01/11/2017)

2017-01-11

MINUTE ORDER granting 32 Defendant's Motion for Extension of Time to File an Opposition to Plaintiff's Motion for Attorney's Fees and Costs. It is hereby ORDERED that the briefing schedule be amended as follows: Defendant's opposition shall be due by February 1, 2017 and Plaintiff's reply in support of its motion shall be due by February 17, 2017. Signed by Judge Christopher R. Cooper on 1/11/2017. (lccrc2) (Entered: 01/11/2017)

ORDER granting in part and denying in part 31 Plaintiff's Motion for Attorney Fees. It is hereby ORDERED that the parties shall file a joint proposed order on or by July 26, 2017 prescribing the total amount of attorneys' fees and costs re-calculated in a manner consistent with the accompanying Memorandum Opinion. Please see Order for full details. Signed by Judge Christopher R. Cooper on 7/18/2017. (lccrc2) (Entered: 07/18/2017)

Consent MOTION for Extension of Time to File Joint Proposed Order by UNITED STATES DRUG ENFORCEMENT ADMINISTRATION (Attachments: # 1 Text of Proposed Order)(Wyer, Kathryn) (Entered: 07/25/2017)

2017-07-26

MINUTE ORDER granting 37 Defendant's Consent Motion for an Extension of Time to File the Joint Proposed Order. It is hereby ORDERED that parties shall submit the Joint Proposed Order on or by August 2, 2017. Signed by Judge Christopher R. Cooper on 7/26/2017. (lccrc2) (Entered: 07/26/2017)

2017-08-02

38

NOTICE of Proposed Order by UNITED STATES DRUG ENFORCEMENT ADMINISTRATION re 35 Order on Motion for Attorney Fees, Order on Motion for Extension of Time to File, (Wyer, Kathryn) (Entered: 08/02/2017)

2017-08-02

39

ORDER: Upon consideration of 38 parties' joint submission, it is hereby ORDERED that Defendant shall pay Plaintiff attorney's fees and costs in the amount of $9,078.53 within 45 days of this Order. See Order for full details. Signed by Judge Christopher R. Cooper on 8/2/2017. (lccrc2) (Entered: 08/02/2017)